Alexandria Ocasio-Cortez Apologizes And Unblocks Critic Who Sued Her

from the a-step-in-the-right-direction dept

Right after Donald Trump lost the case against him for blocking people on Twitter, we noted that Dov Hikind, a critic of Rep. Alexandria Ocasio-Cortez launched a similar lawsuit against her for blocking him. Again -- because it's important to repeat -- the court rulings in the Trump case made it clear that politicians who used Twitter for part of their job representing the public could not block people, as that's a violation of the 1st Amendment. The specific criteria laid out by the courts were that (1) if you're a public official, and (2) using social media (3) for official purposes (4) to create a space of open dialogue, then you cannot block people from following you based on the views they express.

It appeared that the @AOC account met all of the criteria, and therefore should not be able to block critics for expressing their dislike of her stances or policies. Ocasio-Cortez, on her part, stood by her right to block people by claiming that she only blocked 20 people, none were constituents, and that they were only blocked for harassment which, she argued, was "not a viewpoint" (i.e., this wasn't viewpoint discrimination). Either way, just as the Hikind case was about to go to trial, Ocasio-Cortez has settled the case, admitted she was wrong to block Hikind and apologized:

“Mr. Hikind has a First Amendment right to express his views and should not be blocked for them,” the Queens-Bronx congresswoman said. “In retrospect, it was wrong and improper and does not reflect the values I cherish. I sincerely apologize for blocking Mr. Hikind.”

The Knight 1st Amendment Institute, which had brought the lawsuit against Trump and had sent Ocasio-Cortez a letter arguing that she was incorrect to block people with her account, announced that they were happy with this result. According to their Senior Staff Attorney, Katie Fallow:

“We applaud Rep. Ocasio-Cortez for recognizing that she was wrong to block critics from her Twitter account. As the courts have affirmed, when public officials use their social media accounts to carry out official duties, they create a public forum and can’t prevent people from participating simply because they don’t like what they’re saying. We hope that other public officials who are blocking critics from their social media accounts take Ocasio-Cortez’s lead.”

That said, while this case was settled and Ocasio-Cortez admitted to being wrong, she still seems to be standing by the idea that she can block some users:

“I reserve the right to block users who engage in actual harassment or exploit my personal/campaign account, @AOC, for commercial or other improper purposes,” she said.

There might be cases where it would not be a 1st Amendment violation to block users, but the details would matter quite a bit -- and the argument that harassment, by itself, would constitute a reason for blocking seems iffy, at best. Same with "exploit[ing]" her account "for commercial or other improper purposes." It will be interesting to see if other such cases are brought, or if the @AOC account choose to block others in the future.

Filed Under: 1st amendment, alexandria ocasio-cortez, aoc, blocking, dov hikind, free speech, public spaces, social media
Companies: twitter

Knight Institute Warns Rep. Ocasio-Cortez That She, Like Trump, Can't Block People On Twitter

from the as-noted dept

Earlier this summer, we wrote about the 2nd Circuit appeals court affirming a district court ruling against Donald Trump, saying that it's a 1st Amendment violation for him to block followers on Twitter. The reasoning in the decisions was a bit nuanced, but the short version is that (1) if you're a public official, and (2) using social media (3) for official purposes (4) to create a space of open dialogue, then you cannot block people from following you based on the views they express. The four conditions do need to be met -- and the lower court at least noted that such public officials can still "mute" people. That is, the officials don't need to listen -- but they cannot limit access to the narrow public space that is created in response to their official social media posts.

Right after that ruling came down, we pointed out that someone had already sued Rep. Alexandria Ocasio-Cortez for blocking people on Twitter as well, and our analysis was that she certainly seemed to be violating the 1st Amendment in the same way as Trump was. Now, the Knight 1st Amendment Institute, which filed the initial lawsuit against Trump, has sent a letter to Ocasio-Cortez making the same point. This is interesting, because when the original lawsuit against AOC was filed, and the media requested comment from the Knight Institute, there was at least some hesitation, saying that they needed to look at all of the details. Now that the details have been explored, it appears that the Knight Institute has come to the same conclusion.

As the letter makes clear, the @AOC account meets all the criteria that the court required to say that blocking is not allowed. Apparently Ocasio-Cortez is trying to argue that the @AOC account is a personal account, and she had another more official account. But, as the Knight letter explains, that's not at all accurate:

Based on the facts as we understand them, the @AOC account is a “public forum” within the meaning of the First Amendment. You use the account as an extension of your office—to share information about congressional hearings, to explain policy proposals, to advocate legislation, and to solicit public comment about issues relating to government. Recently, for example, you used the account to discuss new “policy approaches we should consider wrt immigration,” and to ask the public, “[w]hat commissions would you want to see Congress establish?” The account is a digital forum in which you share your thoughts and decisions as a member of Congress, and in which members of the public directly engage with you and with one another about matters of public policy. Since you first took office, the number of users following the @AOC account has reached more than 5.2 million. Many of your tweets staking out positions on issues such as immigration, the environment, and impeachment have made headline news. The @AOC account is important to you as a legislator, to your constituents, and to others who seek to understand and influence your legislative decisions and priorities.

Multiple courts have held that public officials’ social media accounts constitute public forums when they are used in the way that you use the @AOC account, and they have made clear that public officials violate the First Amendment when they block users from these forums on the basis of viewpoint. Most relevant here, the U.S. Court of Appeals for the Second Circuit recently concluded that President Trump violated the First Amendment by blocking users from his Twitter account, @real- DonaldTrump, because “he disagree[d] with their speech.” In another recent case, the Fourth Circuit held that the chairperson of a local county board violated the First Amendment by blocking an individual from her Facebook page.

In pending litigation, your attorneys have argued that the @AOC account is not subject to the First Amendment because it is a personal account. As we have explained above, that characterization is incorrect. Further, while we understand that you have another account that is nominally your “official” one, the fact remains that you use the @AOC account as an extension of your office. Notably, the Second Circuit rejected President Trump’s argument that his account is a personal one even though he has other accounts—@POTUS and @WhiteHouse—that are nominally official. The Court wrote, “the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.”

So far, AOC responded to this by saying that she's only blocking 20 accounts and that she's blocking them for "harassment," rather than viewpoint discrimination.

But, again, as the lower court said in the Trump case, the remedy there should be "muting," not blocking. I get that being a public figure on Twitter is not always fun -- and especially for polarizing political figures (which both Trump and Ocasio-Cortez undoubtedly are). And I get that it must suck to have assholes clog up your feed. I'm barely known and, while I use Twitter's block button sparingly, I have found it useful at times. But I'm not a publicly elected official using my account for official business as an elected politician. The fact that one of the accounts AOC is blocking is a media outlet, even one as ridiculous as The Daily Caller, only highlights the 1st Amendment concerns here.

I've seen some people supporting the case against Trump, but not supporting it against AOC (and I've also seen the reverse). In most cases, though, those opinions seem to be driven mainly by whether or not one feels politically aligned with one or the other politician. And, while I have seen some good faith arguments that "harassment" should be considered something different, there is a very slippery slope there. Put that into Trump's hands and he'll just as quickly claim that everyone who is criticizing him is "harassing" him as well. We have a 1st Amendment for a reason, and politicians on both sides of the traditional aisle should respect that.

Filed Under: 1st amendment, alexandria ocasio-cortez, donald trump, free speech, harassment, public officials, public spaces
Companies: knight institute